Jairo saga: Embarrassing clash between Legislature, Executive

By Bituro Kazeri

28th August 2011

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A stick at a distance does not kill a snake. This is a literal translation of the Kiswahili saying: “Fimbo ya mbali haiuwi nyoka”. For the purpose of this discussion and in order to put the would-be participant in the light, reference is made to the Universal Declaration of Human Rights (UDHR) article one, six, seven, eight, eleven sub article one and thirty.

Article one provides that: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. Article six states that:

“Everyone has the right to recognition everywhere as a person before the law.” Article seven entails that: all (human beings) are equal before the law and are entitled without any discrimination to equal protection of the law.

All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article eight provides that:” Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.”

Article eleven sub article one states that “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.

While article thirty provides that “Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.”

Human rights are based on a number of principles. The first principle states that human rights are universal and inalienable, meaning all human beings everywhere in the universe are subject of these human rights. This principle is enshrined in article one of the UDHR.

The second principle of human rights depicts another characteristic of human rights that are indivisibility. This impliedly means that all human rights are of equal importance, status, can not be arranged in hierarchal order, thus the violation of one right means the violation of all rights.

The third principle of human rights states that human rights are interdependent and interrelated. The Interdependence and Interrelatedness of the human rights facilitates the realisation of human beings’ dignity as well personal developmental, physical, psychological and spiritual needs.

The fourth principle of human rights is equality and non-discrimination. This entails that all human beings are equal as human beings regardless of their race, colour, ethnicity, gender, age, language, sexual orientation, religion, political or other opinion, national, social or geographical origin, disability, property, birth or other status. Any discrimination based on any ground constituent an act of human right violation.

The fifth principle of human rights is participation and inclusion. This principle gives the right to all human beings to participate in any form, in all aspects that affect their socio-economical well being. It also gives all human beings the right to know and be informed of the decision making process that affects their lives.

The sixth principle is accountability and the rule of law. This principle creates obligation to the state and duty bearers which requires them to promote, protect and observe human rights.

In order to do that, they have to observe and comply with the requirements of the legal framework. Individuals, the media, civil society and the international community play important roles in holding governments accountable for their obligation to uphold human rights.

The declaration of human rights wholly rests on the six principles outlined above. In turn any state’s legal frameworks have to be in line with the UDHR legal framework.

In this regard, the Constitution of the United Republic of Tanzania of 1977 and other legislations observes the standard set by the UDHR, that why Tanzanian claims to be subject of the rule of law.

In Tanzania, we have the three pillars namely: the executive, the judiciary and the legislative. The three pillars are independent of each other in order to ensure the separation and balance of power which is a sub principle of principle six of human rights.

In the same spirit of promoting human rights, Tanzania introduced and established the multi party system in order to widen the participation of the citizen in decision making in various forms.

This is the field of play of politicians. Political scientists define politics as any activity around power and decision making. In the political sphere, we have politicians who are manning various position where they exercise their power to influence decision making that affects our life in one way or another.

However the process of gaining power, which is an ability to exert one’s wish over others and influence decision making is a very trick one. The process involves competition which is an ideal method of allocation of scarce and limited resources. Competition is driven by motive and is geared towards realisation of one’s interests.

Furthermore, competition is rational actions which aim at competing and destruction of other competitors. This involves designing strategies both lawful and unlawful in order for one to remain in control.

Decision making organs are occupied by individuals who are the product of power play and their continuing existence relies on continuing application of the same strategies. Owing to this situation, the political field has witnessed gross violation of human rights despite the facts that it is the very product of the same human rights.

Politicians have all along designed and employed strategies which hurt their political opponents beyond repair in the process of weaning the uninformed mass. Unfortunately our politicians in the Parliament seem to be scoring high grades in this area.

What our politicians in the Parliament do not put in consideration is that when they are at work they are given seven hours of prime time in our media outlets which enables us to see what they are doing. What they also do not realise is that most of us takes seriously and as genuine whatever they say.

We expect that whatever they say is in compliance with the rule of law. We know they are informed of what the rule of law desires to accomplish towards promotion of the dignity of human beings.

As explained above, the rule of law as one of the principle of human rights has a number of sub principles. These are: first; no crime without existing law to that effect (Nullum crimen, nulla poena sine lege).

This sub principle referred to as the principle of legality is a core value, a human right but also a fundamental defence in criminal law prosecution according to which no crime or punishment can exist without a legal ground (crisan, 2010).

Our politicians out and inside the Parliament have been the greater violators of this sub principle. They have created criminality in the situation where there are no existing laws that describe these deeds as crime, as a result down-grading the dignity of the affected individuals beyond redress.

A good number of individuals have been framed and made to look as criminals by sheer utterances of our politicians in the Parliament, a forum where they enjoy questionable immunity as provided by our Constitution.

The second sub-principle of the rule of law is presumption of innocence. This states that no one should be made to be seen as guilty of an offence until it is proved so by the legal process administered by an impartial judiciary.

More often than not we have witnessed our politicians in the parliament and in other political fora accusing and judging them out rightly defenseless individuals, of criminal offences with impunity.

The third sub-principle is the separation of powers. The separation of powers entails the division of the three types of power – legislative, executive and judicial – onto three separate institutions.

Legislative power entails the power to make laws and is concentrated in the Parliament. Executive power means the power to implement laws and is given to the government and its various institutions. Judicial power gives the judicial the power to decide whether laws are legal according to the Constitution. No power has an indiscriminate luxury to meddle with the affairs of other powers.

On a number of occasions, our politicians in the Parliament have cried foul accusing the other power of meddling in their affairs. A recent case of the Permanent Secretary in the Ministry of Energy and Minerals, David Jairo, who is accused of allegations of abuse of office, presents a good test of the doctrine of separation of powers and indeed human rights.

Our politicians in the Parliament accused Jairo and in actual fact passed the judgment that only missed a signature at least before the eyes of the public. The only relief is drawn from the words of the Prime Minister which indicated that he lacks mandate to deal with Mr Jairo.

From there the disciplinary authority- Chief Secretary (CS), that can deal with Jairo stepped in and asked the Controller and Auditor General to probe the issue. It is the outcome of that probe that made the politicians in the Parliament cry foul.

Our politicians in the Parliament claim to have been treated with disrespect by the other power. This raises a number of questions that need to be answered. One, do the politicians have disciplinary authority over Jairo? If the answer to question one is no, did they expect the disciplinary authority to fire Jairo outrightly on the ground of their allegations or simply endorse their judgment? Three, CAG was assigned by the Principal Secretary to probe the allegation, how on earth could the politicians in the Parliament with due respect expect the CAG to report to them?

Disrespect for human rights and rule of law undermines good governance and signifies the possibility of conflict, disorder and anarchy in the society. This quotation truly describes the situation created. Part of the public is of the view that Jairo had committed the crime and should be convicted as charged.

This view is not complying with the provision of our constitution as refereed to by honourable Nimrod Mkono who directed his fellow politicians in the Parliament to article 13(6) which entails that everybody was entitled to fair hearing and should not be condemned unheard.

From human rights point of view, any person should not only be heard but should be tried before an impartial jury. Here we have the Parliament standing as the accuser on one side and on the other side the Parliamentary select-committee made by the Members of the Parliament as the juror. We are not expecting a fair trial or a fair judgment. Are we?

Another part of the public feels that there is lack of communication within the ranks of the government. The Chief Secretary is a helping hand to the government, thus we would expect him to almost be playing to the tune and test of the President.

Having his decision overruled and overturned in such a short time point us all to the other direction-poor governance. Is this the case or the executive power did not want to put up the fight with the other power?

The integrity of the CAG is also put at the sword. The work of this constitutional figure always creates the base of most of our politicians in the Parliament particularly those from the opposition camp. It is highly rated, but all that is gone simply because he did turn out with a report contrary to the expectations of the politicians in the Parliament.

The only positive thing that has come out of this saga is with regard to the Honourable Prime Minister. The Honorable Prime Minister who has been depicted by some of the politicians in the Parliament as a liar to an extent of attempting to initiate a vote of no confidence has all of the sudden turned to be a hero. But to the public that is a little too late.

As pointed above the violation of human rights signified by disrespect of the rule of law result into anarchy as it is capable of creating a vicious cycle of revenge and score settling which seems to be the hitherto scenario in our country.

The most valuable asset of any human being is dignity and towards it all the principles of human rights and substantive human rights are oriented to save.

All organs and institutions created out of the spirit of human rights have to underscore this reality. According to the Universal Declaration of Human Rights (1948): “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”

Aristotle said more than two thousand years ago, "The rule of law is better than that of any individual." Our politicians in and out of the parliament should operate within this perimeter lest they will corrupt the mass beyond the manageable perimeter. May God bless us all.